Karnataka High Court
Imamsab S/O Ibrahimsab ... vs Smt. Imambee W/O Rajesab Sortur on 3 June, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 100093 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3rd DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100093 OF 2021 (PAR-)
BETWEEN:
1. IMAMSAB S/O IBRAHIMSAB MULLANAVAR,
AGE. 65 YEARS,OCC. AGRICULTURIST,
R/O. SHIRAGUPPI,TQ. HUBBALLI,
DIST. DHARWAD 580008.
...APPELLANT
(BY SRI. R H ANGADI.,ADVOCATE)
AND:
1. SMT. IMAMBEE W/O RAJESAB SORTUR,
,AGE. 60 YEARS,OCC. HOUSEHOLD WORK,
R/O. SHIRAGUPPI,TQ. HUBBALLI,
DIST. DHARWAD 580008.
VN
BADIGER
...RESPONDENT
Digitally signed (BY SRI.SOURAB A SANDUR.,ADV., FOR SRI. SRI.K.L.PATIL,
by V N BADIGER
Date: 2022.06.13 ADVOCATE)
10:55:41 -0700
THIS RSA FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 03.11.2020 PASSED IN
R.A.NO.281/2017 ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DTD.19.7.2017, PASSED IN O.S. NO.217/2016 ON THE FILE OF THE
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RSA No. 100093 of 2021
III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is preferred by the
defendant in RA.No.281/2017, on the file of the I Addl
District and Sessions Judge, Dharwad, sitting at Hubballi,
challenging the judgment and decree 3/11/2020,
confirming the judgment and decree 19/7/2017 in
O.S.No.217/2016 on the file of the III Addl. Senior Civil
Judge, Hubballi, decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties to the
Regular Second Appeal are referred to with their rank
before the trial Court.
3. It is case of the plaintiff that the plaintiff and
defendant are the children of Ibrahimsab Mullanavar and
Muktumbai Mullanavar. Both the parents of the parties
died leaving behind the plaintiff and defendant and they
RSA No. 100093 of 2021
had succeed to their estate. It is further averred in the
plaint that the suit schedule properties are the properties
of their father and therefore, the plaintiff is having share in
the suit schedule properties and accordingly, she made a
claim with the defendant and the same was denied and as
such the plaintiff has filed O.S.No.217/2016 on the file of
the III Addl. Senior Civil Judge, Hubballi, seeking 1/3rd
share in the suit schedule properties.
4. On service of notice, defendant entered appearance
and filed written statement denying the averments in the
plaint. It is the specific defense of the defendant that after
the death of their father in the year 1990, a report-Varadi
was made stating that he has paid the entire sale
consideration amount in respect of the suit schedule
properties. Thus, defendant claims to be the owner of the
suit schedule properties and therefore, defendant sought
for dismissal of the suit.
5. Based on the pleadings on record, the trial court
framed issues for its consideration. Plaintiff was examined
RSA No. 100093 of 2021
as PW.1 and she has produced nine documents and the
same were marked as Ex.P.1 to 9. The defendant was
examined as DW.1 and produced three documents and the
same were marked as Ex.D.1 to 3. The trial Court got
marked four documents as EX.C.1 to Ex.C.4. The trial
Court, after considering the material on record by its
judgment and decreed dated 19/7/2017 held that the
plaintiff is entitle for relief of partition and separate
possession of 1/3rd share in the suit schedule properties.
Feeling aggrieved by the same, defendant has preferred
RA.No.281/2017 before the 1st Addl. District and Sessions
Judge, Dharwad and the said appeal was resisted by the
plaintiff. The First Appellate Court after considering
material on record, by its judgment and decree dated
3/11/2020 dismissed the appeal and as such confirmed the
judgment and decree in O.S.No.217/2016. Being aggrieved
by the judgment and decree passed by the Courts below,
defendant has preferred this appeal.
RSA No. 100093 of 2021
6. I have heard Sri.R.H.Angadi, learned counsel
appearing for appellant and Sri.Sourabha A Sandur,
learned counsel appearing for the respondent.
7. Sri.R.H.Angadi, learned counsel appearing for the
appellant argued that both the courts below have not
considered the Varadi as per Ex.C.1, wherein the mother of
the parties has submitted that name of the defendant be
effected in the revenue documents. Therefore, he
submitted that the finding recorded by the Courts below
requires interference with this appeal.
8. Per contra, learned counsel appearing for the
respondent argued that as both the courts have
concurrently held against the appellant herein and hence,
no interference is required in this appeal.
9. In the backdrop of the arguments advanced by the
learned counsel appearing for the parties, careful
examination of the finding would reveals that the plaintiff
and the defendant are the children of Ibrahimsab
RSA No. 100093 of 2021
Mullanavar and Muktumbai Mullanavar. Parties to the suit
are governed by the Mohammedan law. It is not in dispute
that the suit schedule properties stands in the name of
their parents and pursuant to the Varadi submitted by the
plaintiff in the year 1990, the revenue documents were
mutated in favour of the defendant. It is well established
principle in law that the revenue documents presupposes
the possession and do not confirm title to the parties. It is
also settled principle that the entry made in the mutation
or records of rights or such other revenue records do not
confirm title to the parties and parties to the lis have to
establish their rights and to prove their title in respect of
the suit schedule properties. In this regard, it is apt to
follow the law declared by the Hon'ble Apex Court in the
case of State of Himachal Pradesh vs Shri Keshav
Ram and Ors reported in AIR 1997 SC 2181, wherein
the Hon'ble Apex Court has held that the entry in the
revenue records cannot form basis for declaration of title.
It is also useful to refer to the judgment of the Hon'ble
RSA No. 100093 of 2021
Apex Court on similar lines in the case of Narain Prasad
Aggarwal (D) by LRs v. State of M.P reported in AIR
2007 SC 2349 wherein at paragraph 22 of the judgment
the Hon'ble Apex Court has held as follows:
"22. Record of right is not a document of title.
Entries made therein in terms of Section 35 of the
Indian Evidence Act although are admissible as a
relevant piece of evidence and although the same
may also carry a presumption of correctness, but it
is beyond any doubt or dispute that such a
presumption is rebuttable. Exhibit P-4 and Exhibit
P-6, whereupon reliance has been placed by the
learned trial judge to hold that the State had title
over the property in question, were documents of
year 1920-21, but failed to notice that the
documents must have been taken into
consideration and/ or would be presumed to have
been taken into consideration by the Settlement
Commissioner when the aforementioned order
dated 30.10.1922 (Exhibit P-3) was passed wherein
it had categorically been held that no deed of lease
having been executed in respect of the land in
question, the title of the said Putri Sethani should
be deemed to be a permanent lessee."
RSA No. 100093 of 2021
10. Following the law declared by the Hon'ble Apex
Court in the aforementioned cases and applying principles
to the case on hand, I am of the opinion that the trial Court
after appreciating the material on record, rightly come to
the conclusion that the Varadi submitted by the plaintiff to
the Revenue Authorities cannot be considered as a basis to
confirm title to the defendant and accordingly, the trial
Court rightly decreed the suit by allowing 1/3rd share to the
plaintiff as the parties to suit are governed by the
Mohammedan law. The First Appellate Court, after
considering the material on record and taking into account
oral and documentary evidence adduced by the parties,
rightly dismissed the appeal and confirmed the judgment
and decree passed by the trial Court. Having considered
the entire material on record, I am of the view that both
the courts below have rightly decreed the suit in favour of
the plaintiff. The defendant-appellant herein has not made
out a case for framing substantial question of law as
required under Section 100 of Code of Civil Procedure and
RSA No. 100093 of 2021
therefore, I am view that there is no perversity or illegality
in the impugned judgment and decree. Accordingly, the
appeal is dismissed at the stage of admission, resultantly,
the Regular Second Appeal is rejected.
Sd/-
JUDGE
Vb/-
